George Zimmerman Hearing: Aside From the Continuance

The video of the hour long hearing in the George Zimmerman case today is here. As multiple news agencies report, the judge denied the defense request for a continuance.

Additional matters that were addressed: Martin family lawyer Benjamin Crump filed a 15 page affidavit about his telephone interview with Witness 8, Trayvon's phone friend who was on the phone with him before the shooting. Crump's lawyer addressed the court, asking that Crump's deposition be postponed until the Court had time to review the Affidavit. [More...]

Crump is concerned that he will be asked about matters other than the phone that would fall under the attorney-client or work product privileges. While the Court has previously ruled that matters to be addressed at hearings be filed 48 hours before the hearing, the Judge granted the motion to postpone. She made it clear that in her previous ruling ordering that Crump be made a witness for the purpose of taking his deposition, she only intended Crump to be deposed about the recording of the interview with Witness 8. Zimmerman's lawyer Don West directed her attention to Rule 3.220 (h)(1)(A) which provides:

After receipt by the defendant of the Discovery Exhibit, the defendant may, without leave of court, take the deposition of any unlisted witness who may have information relevant to the offense charged.

The Judge repeated she would read the affidavit and determine whether his deposition was still required under her previous order. She told the defense to file a motion if they think the affidavit is incomplete and they want to depose Crump further on the phone or on other matters, and she will schedule a hearing.

On the state's refusal to disclose what law enforcement agency it first sent Trayvon Martin's cell phone to for the purpose of accessing its stored content: The state today handed the defense a supplemental discovery exhibit identifying the Agency as the Santa Barbara County Sheriff's office and providing the name of the agent who examined the phone. According to the prosecutor, the agent only obtained "the password" and did not examine the data on the phone. The phone was then returned to the state (or FDLE), and thereafter then sent to Cellebrite in New Jersey for analysis. The Court ordered the state to provide a chain of custody log for the phone, together with a disclosure of what analysis was done by the SBCSO by Friday.

On Witness 8's twitter handles and Trayvon Martin's social media accounts: The judge ordered the state to set up a conference call with Zimmerman's lawyers and Witness 8 for the sole purpose of asking her to provide her twitter handles and account information, so that the defense could include the information in its subpoena to Twitter. The information will not be made public at this time. Any further questions for Witness 8 must be asked at her as yet unscheduled deposition. The same procedure will be used for Trayvon's parent or parents, whichever has the information about his social media accounts.

As to the defense request to be informed by the state as to when it became aware of Witness 8, the Court would not direct the state to provide the defense with this information. The Court said the defense should ask Witness 8 directly about her contacts with the state at her deposition. The defense pointed out that Witness 8 would have no idea of when the state first learned of her existence (as opposed to her first contact with the state) but the ruling stood.

Mark O'Mara told the court that the defense had not yet retained experts and said it was not possible for them to comply with the court's current deadline for expert disclosure, which is in less than one month. He said without an extension/continuance, the defense would not be able to retain experts. The Court said the defense has had enough time to retain experts and refused to change her order.

Among those who have not yet been deposed according to statements at the hearing: Witness 8, the Martin family, and Sanford police investigator Chris Serino. I think prosecutor de la Rionda also included Steven Brenton in this group -- the FDLE analyst who examined Trayvon's cell phone and downloaded data from it, but I'd have to go listen again to be sure. Still not re-deposed: Sanford officer William Ervin, who told the prosecutor he was present when Serino interviewed Tracy Martin and heard Tracy say that the voice on Zimmerman's non-emergency call was not Trayvon's. His statement to the prosecutor is in conflict with Tracy Martin's later public statements in which he claimed he did not deny it was Trayvon's voice, but said he wasn't sure.

Also granted: The defense request for a subpoena to 7/11 for credit card receipts for the time period surrounding Trayvon Martin's purchase of candy and a beverage on Feb. 26. This will assist the defense in identifying the young men who bought items with a credit card immediately after Trayvon left the store, so they can be interviewed about any interactions with Trayvon that night. Their names will not be made public.

Unless a hearing is requested concerning Benjamin Crump's deposition, the next hearing date is March 5.

But here either party can seek voluntary informal interviews in criminal cases and record them however they see fit, but formal depositions are only available by court order upon showing of materiality.

Rule 1.280(c) of the Florida Rules of Civil Procedure permits a nonparty witness in a civil proceeding to move to for a protective order forbidding or limiting in advance the scope of a deposition to protect privileged communications. Rule 3.220 (l)(1) of the Florida of the Florida Rules of Criminal Procedure similarly authorize a witness to move for a protective order in a criminal case. Courts often grant protective orders to prohibit the deposition of a lawyer for a party when the apparent purpose of the deposition is to obtain information from counsel that may fall within the attorney client privilege or the work product privilege. See paragraphs 13-15 of this order.

I do not mean to suggest attorneys are immune from discovery; to the contrary, attorneys with personal knowledge of disputed relevant facts are just as subject to discovery as any other witness. But when the deposition targets information that potentially triggers the attorney client privilege or the work product privilege, protective orders are not all that rare. Whether the proposed deposition of Mr. Crump is such a deposition, or whether under the particular facts of this case he has a legitimate work product privilege claim, is a fair question, but presumably that is why the judge was hesitant to permit the deposition to proceed pending further developments.

The Court said the defense should ask Witness 8 directly about her contacts with the state at her deposition. The defense pointed out that Witness 8 would have no idea of when the state first learned of her existence (as opposed to her first contact with the state) but the ruling stood.

I think more important than the state contact would be those with anybody else who tried to color her future interviews, like the parents, Natalie Jackson and a private investigator, hired by the latter. If I were the defense, I would be chomping at the bit to start deposing this witness, but I agree it would be best to have her tweets and Facebook entries ahead of time.

The orders directed to DoJ's Community Relations Service and to the FBI allow twenty days for the two agencies to object to some or all of the ordered disclosures. Some of the FBI disclosures ordered seem likely to trigger objections.

this kind of case. O'Mara cited one case to the court. Months ago I wrote (see post for internal links):

Even in non-high profile cases, delays to two to three years are not uncommon.

James Wonder was charged in 2008 with shooting a polygrapher for the U.S. Border Patrol during a road rage incident. Weeks after the shooting, prosecutors asked the grand jury to indict on first degree murder. The grand jury returned an indictment on manslaughter. His stand your ground hearing was just scheduled a few weeks ago for the end of October. The hearing is expected to take 8 to 10 days with 35 to 40 witnesses being called. (One of the issues recently decided: The state objected to the defense introducing Wonder's 3 hour post-arrest interview at the stand your ground hearing.)

Trevor Dooley, a retired bus driver, shot and killed a younger man who was playing basketball in 2010. His stand your ground hearing was in May, 2012. He lost, and trial was set for September. But Dooley is appealing the denial of his stand your ground motion, so the trial date was vacated.

Remember Quentin Wyche, the college football player who lost his stand your ground hearing in February? He was arrested in March, 2010, and it took 2 years to have his stand your ground hearing. His trial was finally set for next month. Last week, unbeknownst to his lawyer, Wyche wrote a letter to the court administrator criticizing Judge Hirsch for denying his stand your ground motion. Two days ago, Judge Hirsch recused himself from the case. Even though Wyche says he wants the November trial date, the new judge may well delay it.

I think the trial could still be continued if O'Mara provides affidavits from experts that they cannot provide their expert opinion within the currently scheduled time frame. The judge said today she didn't find the defense circumstances "unsurmountable." If the defense can't find an expert to analyze and arrive at an opinion on the phone data that the state didn't provide until January 18 (Cellebrite) and that will be provided on Friday (Santa Barbara), she may reconsider.

What relevance DeeDee's twitter accounts could uncover seems a relevant question. No matter how ironically put. At least that part is on topic.

By now from my admittedly completely uninformed perspective all defense motions mirror the rights perspective on the case. I made a couple of comments concerning the age disputes as far as DeeDee is concerned, that always felt like a storm in the teapot to me. Benjamin Crump's affidavit indirectly shows us why this may have happened. He may simply have assumed that the age difference of DeeDee confirmed with some type of romantic relations standard. Should her age have mattered to him given the importance of the witness, wouldn't that be the task to consider for prosecution?

But concerning the social media accounts. Why do you think they could be relevant apart from "suspicion" that she did not bother at all in the early days after the event, thus must have been influenced by someone. As the above commenter I don't put the chances high. But let's assume she really wrote cheerful twitter messages or Facebook comments, what does that really tell us? That she may have tried to distract herself from thinking about a friend's dead? About possible guilt, all the "if only" kind of pondering that must have resulted. Would he have been home, hadn't I called him back at that point? To pick just one.

If his deposition is limited to his own contact and involvement with DeeDee as described by Benjamin Crump and his handling of the recording and tape as also described by him later.

A question to the legal experts here. What would defense want to know he has not written already. And what difference apart from luring him into traps and getting information that concern the client attorney relationship would make the difference. I am assuming that his affidavit has the same value as a statement under oath? No?

Strictly I can understand the defense position, theoretically the "Scheme Team", as it is called over at the treehouse conservative's blog, could pretend to have had only telephone contacts with DeeDee, but actually went to her house repeatedly trying to influenced her. All telephone contacts will show on her phone records. So is the address needed to sent an investigator to the street were she lives hoping that there was much commotion with people coming and going that had not been observed there before? Walking around showing photos that are all over media? Good luck.

While the Court has previously ruled that matters to be addressed at hearings be filed 48 hours before the hearing, the Judge granted the motion to postpone. She made it clear that in her previous ruling ordering that Crump be made a witness for the purpose of taking his deposition, she only intended Crump to be deposed about the recording of the interview with Witness 8.

Her rulings concerned a list of people present, I remember well and she may have ruled on the delivery of the original recording devise plus a copy of the original recording...

I would assume that for a deposition of Benjamin Crump's no special ruling of Debra Nelson is necessary. ...

But strictly does the file-48-hours before-hearing-rule bind Benjamin Crump at all, or does it bind only the parties: defense and prosecution?

Apart from this legal question:

Do we know how long in advance Benjamin Crump was informed about his deposition?. I would help us a lot if O'Mara published them on the gz legal site date they are sent out. But he doesn't do that. Maybe to not show that they are occasionally canceled and a new one has to be sent?

In any case in his Jan. 30, 2013 motion to continue, it is still a "planned deposition" only:.

Benjamin Crump: Only recently Mr. Crump has identified that he intends to file motions attendant to his planned deposition and defense counsel was recently contacted by counsel who may become involved in the case representing Mr. Crump and his firm. Therefore, it is anticipated that additional litigation will be necessary to address and resolve issues surrounding Mr. Crump's deposition.

Notice "planned".

We can compare the advance notice for other depositions e.g. for David Lee and W #18 on Jan 23, 2013 which is filed on 21, Jan, 2013. Thus two days in advance. The deposition of W#4 and W#15 are filed/dated Jan 17, 2013 and took place on Jan 18, 2013 thus one day later.

If we assume for a second the same method was used for Benjamin Crump, how should he have adhered to a 48 hour advance rule, if the same near-term scheduling methods were used?

But I am still not convinced he is bound by that rule. I am simply suggesting that maybe he was additionally forced to be unable to adhere to it, as much as he would have liked to.

It feels to me that Nelson is only forced to decide on this deposition since Crump objects. If Nelson allows it, I assume she will limit the inquiry into the content of the letter, or for that matter the desires of earlier motions in this context.

Neither Blackwell nor BDLR will allow questions concerning the parents and/or DeeDee about whom he apparently does not know much.

What evidence is there that he lies? The fact that he erred in introducing DeeDee as a sixteen year old girl? Assuming the usual standard without ever reflecting about it?

CFNews13 - a cable channel only available to Brighthouse cable subscribers - used Mark Nejame as their legal analyst. Somewhere the video report should be found where he expressed the Grump strategy he saw in play immediately after Tuesday's hearing.

asking about was Zimmerman's phone. The state examined it, downloaded its contents and gave a dump to the defense. However whether or not it had GPS information that would have pinpointed Zimmerman's located during his 2/26/12 NEN call is unknown to the public as far as I know. Maybe this is something O'Mara doesn't know about since he hasn't been able to hire an expert to examine what he has and apparently the state can get away with giving him just the raw data.

Answers many questions about problems with discovery, the taped interview with DeeDee, and missing GPS records from Trayvon's phone.

Thank you for the link to the interview. That last 40 seconds or so is very interesting. O'Mara said that the state has had, since March last year, a map showing the cell towers that Martin's phone was hitting, on the day of the incident. O'Mara learned of the map by seeing it at FDLE (if I recall correctly) in mid-January, a few weeks ago. The map was not produced to him in discovery.

I think it is possible to create such a map without resort to the cell phone, by checking records at the cell towers; but O'Mara left hanging an unstated question correlating location data being missing from the cell phone with the state having a location map - did the state attempt to hide evidence from the defense?